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Doctor Cops and the Black Art of Medicine -- by David A. Ruben, MD, MBA - The practice of medicine is a dangerous pursuit. Treatment can harm as well as help the patient; there are no guarantees. Historically, some societies punished?even executed?the caregiver for failure. Every time a physician intervenes, he or she invites the charge and courts the opportunity to potentially harm the patient. Even if things go well, nobody likes to admit they needed help. A good deed, may, in fact, be resented, even once the problem is resolved. April 23, 2010


Doctor Cops and the Black Art of Medicine  

by David A. Ruben, MD, MBA




The practice of medicine is a dangerous pursuit. Treatment can harm as well as help the patient; there are no guarantees. Historically, some societies punished—even executed—the caregiver for failure. Every time a physician intervenes, he or she invites the charge and courts the opportunity to potentially harm the patient. Even if things go well, nobody likes to admit they needed help. A good deed, may, in fact, be resented, even once the problem is resolved.

All cultures express a mixture of confusion, fear and anger at illness and healing. These emotions can carry over and engulf both the individual patient and his or her caregivers. Some believe the ill person did something wrong, that his or her illness is a punishment for bad actions or being inherently evil. Common sense dictates avoiding the ill person, so as to not be contaminated by him or her. A corollary belief is that if the ill person acted in the “right way,” like the rest of us, he or she wouldn’t have become ill in the first place, and the individual who stays ill might get well if he or she “saw the light.”

Society is equally mystified by why anyone would choose to be a caregiver and work with illness. The more devoted, less well paid and more altruistic a doctor may be, the more suspect the motives; the more successful the healer’s magic, the more fearful the culture may be of his or her power. Interceding in the natural order of things and upsetting the powers that regulate the affairs of mankind may be seen as at least arrogant, and perhaps even an immoral, thing to do. The scientific basis of medicine has long been in competition and tension with other belief systems that compete for allegiance. Faith-based ideologic explanations for health misfortune have long contradicted and punished science. Anatomic dissections have been labeled sacrilegious throughout recorded history. Michelangelo and Leonardo da Vinci hid their anatomic findings for fear of retribution. The adaptation of innovation—even when simple, cheap and useful—is slow and made difficult by fear and resistance to change.

Patients with complaints that are hard to see, such as those with psychiatric problems or chronic pain, are particularly suspect. We worry that they are out to take advantage of the rest of us. They may be welfare cases that burden society by not pulling their load. Not only are they not like the rest of us, but we may fear the unknown forces that caused them their problems and may attack us as well. Humans follow the rules of the primacy of the social herd. The wolf pack will destroy a member who lags. Members that support society’s well being are esteemed; those that do not are eliminated. Our supposedly more humane or higher-level thinking tends to obscure those impulses. We do not often admit to them, and may even hide them in actions that care for those less fortunate than ourselves. We may not openly attack ill people, but our prejudices still show through in our private thoughts and group actions.

Few psychiatric patients or patients who are being treated with opiates for chronic pain have not experienced rejection or censure when they fill their prescriptions, visit a new primary care provider, or attempt to explain their malaise to family and friends. Treatment that involves medications that can be abused—such as opiates, tranquilizers or stimulants—bring to the minds of many the addict/criminal, someone who may commit crimes to finance their use, distribute them to others, or waste productive social time for entertainment or recreation instead of working and doing his or her obligations. Attributing secondary gain and dishonesty is an easier explanation for the desire to use these medications than coming to an understanding of illness and the people affected by it. Although we do not see ourselves as socially responsible when we attack people who are ill, it is acceptable to create unreasonably high barriers and adversarial burdens for them to receive our help.

A Zippered Abdomen

It is also acceptable to displace our feelings upon the people who are caregivers. Society often is jealous of the doctor. Attacking the physician is more acceptable than attacking the patient. He or she is easier to disregard as a victim and be angry at, since the doctor may have disappointed us by failing to cure us or keep us well. Tearing someone else down is a useful distraction from one’s own problems, especially if it is someone who has been looked up to. Experience provides the caregiver with many instances to understand the saying, “Let no good deed go unpunished.”

Famed psychiatrist and pioneer of family therapy Carl Whitaker, MD, spoke of the importance of the doctor’s extending himself or herself to make contact with the patient, but at the same time retaining personal and professional boundaries in order to remain safe. He taught that to be of any help, care must be personal. He talked about having a zipper on his abdomen and exposing his “guts” in his interactions with his patients, making sure to put them back in and zip up at the end of each interaction. He did not make his personal issues the focus of the treatment, but worked hard to maintain his genuine persona in the hope that the patient would learn to do the same and find the courage to make the necessary changes to heal. The physician soon finds out that “standard procedures” are fragile barriers to prevent bad consequences. Overextending oneself to a patient is a setup for future problems. A positive outcome for the patient may still result in retribution.

Whitaker once described his experience of contacting a number of patients some time after their treatment ended. They had done well during the course of treatment and he wanted to find out if they were still doing well. They were, but he was surprised when they were not pleased to hear from him. His explanation for this was that people often “resent the fact that they needed help in the first place, and don’t want to be reminded of it, especially by the helper.” In one of our first lectures in medical school, a professor informed us that it was our job to be flexible in our approach, to adapt to the patient’s needs, so that we could establish the rapport necessary to help them. He also cautioned us about patients who were overly solicitous. Those who are quick to compliment, he said, are usually the ones who are the quickest to damn.

The doctor operates unprotected, under many unrealistic and irrational expectations. He or she is seen under the law as a manager and not an employee. Therefore, the physician is excluded from unionizing and coming under the partial protections of workers’ rights legislation. Medical societies, likewise, provide little shelter. Its members are concerned that raising the issue of limited rights will bring legislative attention that will only increase the legal and punitive handicaps they already work under, as well as their own liability if they move to help an individual physician. If the doctor is to contend with a lawsuit, or from an overseeing board, he is on his own. Colleagues will stay away from being identified with a sticky situation. There is no source of financial help for an extended defense, other than a physician’s limited insurance. In light of current social and political attitudes and legislation, a doctor’s long-range chances of protecting a privilege rather than a right, is costly, time-consuming and slight, even when justified.

The new doctor may not realize all the roles he or she is expected to take on. He can be censured or sued for being too strict and uncaring, or for not treating or undertreating the patient. She can lose her license for being too permissive or enabling if the medical board decides the doctor is not enough of a “doctor cop”—a role the physician did not volunteer for and was never trained to do. Most doctors went to school with the idea that they were in training to treat patients, be their advocates and follow the rubric of Hippocrates, to “do no harm”—not to be part of a police force. Highlighted by the current emphasis on “the war on drugs,” and resulting prescribing scrutiny, doctors are increasingly refusing to prescribe for the most common complaint they see—pain.

The Pain Physician’s Dilemma

Chronic pain is most often in the back, joints, muscles or head. It fits the bill as a condition that is difficult to see, based primarily on the patient’s subjective report rather than “objective” testing. It often disables the patient from doing productive work and may limit the ability to function on his or her own. A pain patient may need to apply for the public support that he or she may have already paid for while they were able to work and earn their way.

Medications for pain are associated with dependence, addiction and diversion. These terms, as well as the conditions they treat, are confusing and poorly understood by the public, most caregivers and regulators. Society calls on the doctor to prescribe appropriately to patients whose conditions are often difficult to document (a person with a negative radiology scan may be in pain, whereas someone with significant anatomic change may not be). If the patient is dishonest about his or her complaints, the doctor is expected to know that and is often punished if he or she does not know.

Medical boards are political animals and are reflective of public sentiment. Physicians may misread what the public thinks about their work and good intentions. The board issues the doctor’s license to practice and earn a living as a privilege of his or her training, not as a right. Board members usually are appointed by the state executive and confirmed by the legislature, and then are left to go about their business without any clear accountability. Without accountability, power typically and quickly outgrows good judgment. The function of peer review laws, which the boards claims to operate under, was to encourage and protect frank discussion between physicians to improve their practices, without fear that what was disclosed would bring lawsuits. The function of these laws has changed to primarily protect the power and the secret actions of the medical boards, allowing them to impose their will on physician practices, while weakening the due process protection for the doctor.

Doctors and medical boards are often at odds, although they are in the same boat. They are assigned a difficult, if not sometimes impossible, role, one that neither has really chosen to perform. They are tasked by society to decide how much to replace the training and experience-based judgment of the physician with lower-level bureaucratic rules. The rules are hedged by being called “guidelines.” These guidelines cannot possibly cover every situation and often do not provide clear direction for their implementation. Neither does the medical board assume responsibility to tell the doctor what to do. Their response to inquiry as to a standard has been, “We enforce the rules; we don’t interpret them.”

We do not shed crocodile tears for the doctor; he or she, unlike the patient, chose this lot and usually there is some reward for his or her efforts. A physician’s lawyer, though, will ask why they would want to be in such a risky business. A physician greatly compounds the problems if he or she doesn’t learn appropriate expectations. All that they can depend on is that they are doing their chosen work to the best of their ability. Whitaker said his first allegiance was to his own integrity, then to his family, and then to his colleagues. His patients, although important, came last. He felt the physician had chosen a job, fraught with dangers, which included much more than negative public and regulatory responses that I have touched on here. Whitaker was more concerned about the risk to the physician for losing the spark and creativity of his or her work, becoming deadened by the stress of it, damaging his or her own mental and physical health, and his or her family and social relationships from its demands.

As physicians, we are great deniers of our problems and the dangers we face. The public and regulatory climate do little to help this. If we don’t prioritize our own health and that of our families, and use our social and professional contacts to address these issues, our goose will be cooked. Universities and hospitals are no longer maintaining contact with one another. An important refuge for combating physician isolation has been the pharmaceutical companies’ efforts to sell their products to us. This had an important side effect of promoting our collegiality in getting physicians together to study, talk and have fun. But this has been sabotaged by the poorly thought out actions of government regulators. In their misguided efforts to limit conflicts of interest, they have eliminated this avenue of communication. Doctors’ main problem now is isolation. They are expected to make dozens of decisions a day with their patients, but mostly on their own. Collaboration and consultation is not paid for in the current scheme of things. Isolation increases both stress and mistakes and is a given in today’s practices.

The medical societies are what’s left. The best customs and traditions of medicine involve discussion and debate among ourselves of what our experience and what scientific evidence supports in providing the best care and administering our profession. The medical boards are isolated from this debate and under pressure to protect the public from us rather than work to improve health care. They are public/political animals that represent the opinions, prejudices and ignorance of that public and their elected officials. They are not an expert panel of fair judges, dedicated to making our lives easier in delivering good patient care. They have typically adopted legalistic processes of addressing complaints, where secrecy and circumspection is advised and where “anything you say can and will be held against you.” In this setting, there is a winner and a loser, instead of reasoned judgment that benefits all. This situation can change only with our input. If doctors are willing to change their characteristic isolation and support their community societies, and if those societies are then willing to have courage and risk the possible fallout of legislative action, things may be changed. The goal would be to create an environment where our role as physician can coexist with the expectation for us to be doctor cops, to the extent that benefits our patients and ensures our survival. If we are willing to formulate and articulate our position, we will be better able to negotiate this role. We must also mobilize the group most affected by the growing lack of access to care—the patients. A good place to start is with the management of pain. Soon the boards’ campaign to eliminate diversion of controlled medication and its “potential for harm” will have resulted in “actual harm” to all patients suffering from chronic pain and needing opiate treatment. There will be no one left who will risk censure to prescribe. The patients are the only ones who can exert the political influence to effect a change in the thinking of the public and the legislature, whose attitudes are expressed by the regulatory boards. The issue of management of chronic pain and social attitudes toward pain patients and the use of opiates for treatment are reminiscent of the attitudes toward mental health patients and gays of a number of years ago. Political action on the part of those affected has been the most important element in changing perception and attitudes that underlie the prejudices against them.

Medical boards have many important roles besides punishing what they think is wrong with a physician’s practice. It is their job to take leadership as part of the health care team to clarify the questions about the law that doctors are to practice under; work with medical societies to define changing standards of care; change their internal process to facilitate discussion of cases and problems to improve practices; and employ fair processes in their evaluation of care, by looking beyond chart reviews to what the patient has to say and what the doctor does in his or her day-to-day practice by observing it directly. The basis for their action must extend beyond what a consultant has read about the case to what potential harm he or she may imagine might occur. If bridge inspectors believed a bridge had a problem, they might do more than read about its instability. They might go in person to inspect the bridge and see how it handled traffic before acting. We should expect those regulating our health care to do the same.

The board’s job is to regulate those who abuse patients, use their position of trust and authority for illegal gain, cause patients harm through poor practices, or misrepresent the profession. Practicing physicians must play a much greater role in that regulation, rather than avoid the board and fear their power, if there is to be fair treatment for us. Medicine’s magical expectations surround us all—physicians, regulators, patients, payers and politicians. When all is said and done, determined, face-to-face interactions work better than all the hoopla and regulation—that, and votes.

David A. Ruben, MD, MBA, is boarded in child and adult psychiatry, addiction and pain medicine and practices at Healthcare Southwest, Tucson, Ariz.;


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